The Protection of Classified Information:
The Legal Framework
Jennifer K. Elsea
Legislative Attorney
December 17, 2012
Congressional Research Service
7-5700
www.crs.gov
RS21900
CRS Report for Congress
Pr
epared for Members and Committees of Congress
The Protection of Classified Information: The Legal Framework
Summary
The publication of secret information by WikiLeaks and multiple media outlets, followed by news
coverage of leaks involving high-profile national security operations, has heightened interest in
the legal framework that governs security classification and declassification, access to classified
information, agency procedures for preventing and responding to unauthorized disclosures, and
penalties for improper disclosure. Classification authority generally rests with the executive
branch, although Congress has enacted legislation regarding the protection of certain sensitive
information. While the Supreme Court has stated that the President has inherent constitutional
authority to control access to sensitive information relating to the national defense or to foreign
affairs, no court has found that Congress is without authority to legislate in this area.
This report provides an overview of the relationship between executive and legislative authority
over national security information, and summarizes the current laws that form the legal
framework protecting classified information, including current executive orders and some agency
regulations pertaining to the handling of unauthorized disclosures of classified information by
government officers and employees. The report also summarizes criminal laws that pertain
specifically to the unauthorized disclosure of classified information, as well as civil and
administrative penalties. Finally, the report describes some recent developments in executive
branch security policies and legislation currently before Congress (S. 3454).
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The Protection of Classified Information: The Legal Framework
Contents
Background ...................................................................................................................................... 1
Executive Order 13526 .................................................................................................................... 3
Handling of Unauthorized Disclosures ............................................................................................ 5
Information Security Oversight Office ...................................................................................... 6
Intelligence Community ............................................................................................................ 7
Department of Defense .............................................................................................................. 8
Penalties for Unauthorized Disclosure .......................................................................................... 10
Criminal Penalties ................................................................................................................... 10
Civil Penalties and Other Measures ......................................................................................... 10
Declassification vs. Leaks and “Instant Declassification” ............................................................. 11
Recent Developments .................................................................................................................... 14
Executive Branch Initiatives .................................................................................................... 14
Congressional Activity ............................................................................................................ 15
Contacts
Author Contact Information........................................................................................................... 17
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The Protection of Classified Information: The Legal Framework
Background
Prior to the New Deal, classification decisions were left to military regulation.1 In 1940, President
Franklin Roosevelt issued an executive order authorizing government officials to protect
information pertaining to military and naval installations.2 Presidents since that time have
continued to set the federal government’s classification standards by executive order, but with one
critical difference: while President Roosevelt cited specific statutory authority for his action, later
presidents have cited general statutory and constitutional authority.3
The Supreme Court has never directly addressed the extent to which Congress may constrain the
executive branch’s power in this area. Citing the President’s constitutional role as Commander-in-
Chief,4 the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to
classify and control access to information bearing on national security ... flows primarily from
this Constitutional investment of power in the President and exists quite apart from any explicit
congressional grant.”5 This language has been interpreted by some to indicate that the President
has virtually plenary authority to control classified information. On the other hand, the Supreme
Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt
new [classification procedures] or [establish] its own procedures—subject only to whatever
limitations the Executive Privilege may be held to impose on such congressional ordering.”6 In
fact, Congress established a separate regime in the Atomic Energy Act for the protection of
nuclear-related “Restricted Data.”7
Congress has directed the President to establish procedures governing the access to classified
material so that no person can gain such access without having undergone a background check.8
1 See Harold Relyea, The Presidency and the People’s Right to Know, in THE PRESIDENCY AND INFORMATION POLICY 1,
16-18 (1981).
2 Exec. Order No. 8381 (1940).
3 Compare Exec. Order No. 10501 (1953) with, e.g., Exec. Order No. 13292 (2003). The most recent Executive Order
on classified information, Exec. Order No. 13526 (Dec. 29, 2009), also cites constitutional authority.
4 U.S. CONST., art. II, §2.
5 Department of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,
890 (1961). In addition, courts have also been wary to second-guess the executive branch in areas of national security.
See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”). The Court has suggested, however, that it might intervene where
Congress has provided contravening legislation. Egan at 530 (“Thus, unless Congress specifically has provided
otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and
national security affairs.”)(emphasis added).
6 EPA v. Mink, 410 U.S. 73, 83 (1973).
7 42 U.S.C. §2011 et seq. In addition, the Invention Secrecy Act (codified at 35 U.S.C. §181 et seq.) authorizes the
Commissioner of Patents to keep secret those patents on inventions in which the government has an ownership interest
and the widespread knowledge of which would, in the opinion of the interested agency, harm national security. For a
more detailed discussion of these and other regulatory regimes for the protection of sensitive government information,
see CRS Report RL33502, Protection of National Security Information, by Jennifer K. Elsea; CRS Report RL33303,
“Sensitive But Unclassified” Information and Other Controls: Policy and Options for Scientific and Technical
Information, by Genevieve J. Knezo.
8 Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L. 103-359 (codified at 50 U.S.C. §435 et
seq.). Congress has also required specific regulations regarding personnel security procedures for employees of the
National Security Agency, P.L. 88-290, 78 Stat. 168, codified at 50 U.S.C. §§831 - 835. Congress has also prohibited
the Department of Defense from granting or renewing security clearances for officers, employees, or contract personnel
who had been convicted of a crime (and served at least one year prison time) and for certain other reasons, with a
(continued...)
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The Protection of Classified Information: The Legal Framework
Congress also directed the President, in formulating the classification procedures, to adhere to
certain minimum standards of due process with regard to access to classified information.9 These
include the establishment of uniform procedures for, inter alia, background checks, denial of
access to classified information, and notice of such denial.10 The statute also explicitly states that
the agency heads are not required to comply with the due process requirement in denying or
revoking an employee’s security clearance where doing so could damage national security,
although the statute directs agency heads to submit a report to the congressional intelligence
committees in such a case.11
With the authority to determine classification standards vested in the President, these standards
tend to change whenever a new administration takes control of the White House.12 The
differences between the standards of one administration and the next have often been dramatic.
As one congressionally authorized commission put it in 1997:
The rules governing how best to protect the nation’s secrets, while still insuring that the
American public has access to information on the operations of its government, past and
present, have shifted along with the political changes in Washington. Over the last fifty
years, with the exception of the Kennedy Administration, a new executive order on
classification was issued each time one of the political parties regained control of the
Executive Branch. These have often been at variance with one another ... at times even
reversing outright the policies of the previous order.13
Various congressional committees have investigated ways to bring some continuity to the
classification system and to limit the President’s broad powers to shield information from public
examination.14 In 1966, Congress passed the Freedom of Information Act (FOIA), creating a
presumption that government information will be open to the public unless it falls into one of
FOIA’s exceptions. One exception covers information that, under executive order, must be kept
secret for national security or foreign policy reasons.15 In 2000, Congress enacted the Public
Interest Declassification Act of 2000,16 which established the Public Interest Declassification
Board to advise the President on matters regarding the declassification of certain information, but
the act expressly disclaims any intent to restrict agency heads from classifying or continuing the
classification of information under their purview, nor does it create any rights or remedies that
(...continued)
waiver possible only in “meritorious cases,” P.L. 106-398 §1, Div. A, Title X, §1071(a), 114 Stat. 1654, 10 U.S.C.
§986.
9 50 U.S.C. §435(a).
10 Id.
11 Id. §435(b). The House Conference Report that accompanied this legislation in 1994 suggests that Congress
understood that the line defining the boundaries of executive and legislative authority in this area is blurry at best. The
conferees made explicit reference to the Egan case, expressing their desire that the legislation not be understood to
affect the President’s authority with regard to security clearances. See H.R. REP. 103-753, at 54.
12 See Report of the Commission on Protecting and Reducing Government Secrecy, S. DOC. NO. 105-2, at 11 (1997).
13 Id.
14 See, e.g., Availability of Information from Federal Departments and Agencies: Hearings Before the House
Committee on Government Operations, 85th Cong. (1955).
15 5 U.S.C. §552(b)(1). The Supreme Court has honored Congress’s deference to executive branch determinations in
this area. EPA v. Mink, 410 U.S. 73 (1973). Congress, concerned that the executive branch may have declared some
documents to be “national security information” that were not vital to national security, added a requirement that such
information be “properly classified pursuant to an executive order.” 5 U.S.C. §552(b)(1)(B).
16 P.L. 106-567, title VII, Dec. 27, 2000, 114 Stat. 2856, 50 U.S.C. §435 note.
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The Protection of Classified Information: The Legal Framework
may be enforced in court.17 Most recently, Congress passed the Reducing Over-Classification Act,
P.L. 111-258, which, among other things, requires executive branch agencies’ inspectors general
to conduct assessments of their agencies’ implementation of classification policies.18
Executive Order 13526
The present standards for classifying and declassifying information were last amended on
December 29, 2009.19 Under these standards, the President, Vice President, agency heads, and
any other officials designated by the President may classify information upon a determination that
the unauthorized disclosure of such information could reasonably be expected to damage national
security.20 Such information must be owned by, produced by, or under the control of the federal
government, and must concern one of the following:
• military plans, weapons systems, or operations;
• foreign government information;
• intelligence activities, intelligence sources/methods, cryptology;
• foreign relations or foreign activities of the United States, including confidential
sources;
• scientific, technological, or economic matters relating to national security;
• federal programs for safeguarding nuclear materials or facilities;
• vulnerabilities or capabilities of national security systems; or
• weapons of mass destruction.21
Information may be classified at one of three levels based on the amount of danger that its
unauthorized disclosure could reasonably be expected to cause to national security.22 Information
is classified as “Top Secret” if its unauthorized disclosure could reasonably be expected to cause
“exceptionally grave damage” to national security. The standard for “Secret” information is
“serious damage” to national security, while for “confidential” information the standard is
“damage” to national security. Significantly, for each level, the original classifying officer must
identify or describe the specific danger potentially presented by the information’s disclosure.23 In
case of significant doubt as to the need to classify information or the level of classification
17 Id. §§705 and 707.
18 P.L. 111-258, §6, codified at 50 U.S.C. §435 note.
19 Classified National Security Information, Exec. Order No. 13526, 3 C.F.R. 298 (2009). For a more detailed
description and analysis, see CRS Report R41528, Classified Information Policy and Executive Order 13526, by Kevin
R. Kosar.
20 Exec. Order No. 13526 §1.1. The unauthorized disclosure of foreign government information is presumed to damage
national security. Id. §1.1(b).
21 Id. §1.4. In addition, when classified information which is incorporated, paraphrased, restated, or generated in a new
form, that new form must be classified at the same level as the original. Id. §§2.1 - 2.2.
22 Id. §1.2.
23 Id. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting
national security, such as to conceal violations of law or avoid embarrassment. Id. §1.7(a).
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appropriate, the information is to remain unclassified or be classified at the lowest level of
protection considered appropriate.24
The officer who originally classifies the information establishes a date for declassification based
upon the expected duration of the information’s sensitivity. If the office cannot set an earlier
declassification date, then the information must be marked for declassification in 10 years’ time
or 25 years, depending on the sensitivity of the information.25 The deadline for declassification
can be extended if the threat to national security still exists.26
Classified information is required to be declassified “as soon as it no longer meets the standards
for classification.”27 The original classifying agency has the authority to declassify information
when the public interest in disclosure outweighs the need to protect that information.28 On
December 31, 2006, and every year thereafter, all information that has been classified for 25
years or longer and has been determined to have “permanent historical value” under Title 44 of
the U.S. Code will be automatically declassified, although agency heads can exempt from this
requirement classified information that continues to be sensitive in a variety of specific areas.29
Agencies are required to review classification determinations upon a request for such a review
that specifically identifies the materials so that the agency can locate them, unless the materials
identified are part of an operational file exempt under the Freedom of Information Act (FOIA)30
or are the subject of pending litigation.31 This requirement does not apply to information that has
undergone declassification review in the previous two years; information that is exempted from
review under the National Security Act;32 or information classified by the incumbent President
and staff, the Vice President and staff (in the performance of executive duties), commissions
appointed by the President, or other entities within the executive office of the President that
advise the President.33 Each agency that has classified information is required to establish a
system for periodic declassification reviews.34 The National Archivist is required to establish a
similar systemic review of classified information that has been transferred to the National
Archives.35
24 Id. §§1.1-1.2. This presumption is a change from the predecessor order.
25 Exec. Order No. 13526 at §1.5. Exceptions to the time guidelines are reserved for information that can be expected to
reveal the identity of a human intelligence source or key design concepts of weapons of mass destruction. Id.
26 Id. §1.5(c).
27 Id. §3.1(a).
28 Id. §3.1(d).
29 Id. §3.3.
30 5 U.S.C. §552. For more information, see CRS Report R41406, The Freedom of Information Act and Nondisclosure
Provisions in Other Federal Laws , by Gina Stevens.
31 Exec. Order No. 13526 §3.5.
32 50 U.S.C. §§403-5c, 403-5e, 431.
33 Exec. Order No. 13526 §3.5.
34 Id. §3.4. “Need-to-know” is based on a determination within the executive branch in accordance with relevant
directives that a prospective recipient “requires access to specific classified information in order to perform or assist in
a lawful and authorized governmental function.” Id. §6.1(dd).
35 Id. §3.4. Exec. Order No. 13526 creates a new National Declassification Center (NDC) within the National Archives
to facilitate and standardize the declassification process. Id. §3.7. For more information about the NDC, see CRS
Report R41528, Classified Information Policy and Executive Order 13526, by Kevin R. Kosar
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Access to classified information is generally limited to those who demonstrate their eligibility to
the relevant agency head, sign a nondisclosure agreement, and have a need to know the
information.36 The need-to-know requirement can be waived, however, for former Presidents and
Vice Presidents, historical researchers, and former policy-making officials who were appointed by
the President or Vice President.37 The information being accessed may not be removed from the
controlling agency’s premises without permission. Each agency is required to establish systems
for controlling the distribution of classified information.38
The Information Security Oversight Office (ISOO)—an office within the National Archives—is
charged with overseeing compliance with the classification standards and promulgating directives
to that end.39 ISOO is headed by a Director, who is appointed by the Archivist of the United
States, and who has the authority to order declassification of information that, in the Director’s
view, is classified in violation of the aforementioned classification standards.40 In addition, there
is an Interagency Security Classifications Appeals Panel (“the Panel”), headed by the ISOO
Director and made up of representatives of the heads of various agencies, including the
Departments of Defense, Justice, and State, as well as the Central Intelligence Agency, and the
National Archives.41 The Panel is empowered to decide appeals of classifications challenges42 and
to review automatic and mandatory declassifications. If the ISOO Director finds a violation of
E.O. 13526 or its implementing directives, then the Director must notify the appropriate
classifying agency so that corrective steps can be taken.
Handling of Unauthorized Disclosures
Under E.O. 13526, each respective agency is responsible for maintaining control over classified
information it originates and is responsible for establishing uniform procedures to protect
classified information and automated information systems in which classified information is
stored or transmitted. Standards for safeguarding classified information, including the handling,
storage, distribution, transmittal, and destruction of and accounting for classified information, are
developed by the ISOO. Agencies that receive information classified elsewhere are not permitted
to transfer the information further without approval from the classifying agency. Persons
authorized to disseminate classified information outside the executive branch are required to
ensure it receives protection equivalent to those required internally. In the event of a knowing,
willful, or negligent unauthorized disclosure (or any such action that could reasonably be
expected to result in an unauthorized disclosure), the agency head or senior agency official is
required to notify ISOO and to “take appropriate and prompt corrective action.” Officers and
employees of the United States (including contractors, licensees, etc.) who commit a violation are
subject to sanctions that can range from reprimand to termination.43
36 Id. §4.1.
37 Id. §4.4.
38 Id. §4.2.
39 Id. §5.2.
40 Id. §3.1(c).
41 Id. §5.3.
42 Id. §5.3(b)(1) - (3) For example, an authorized holder of classified information is allowed to challenge the classified
status of such information if the holder believes that status is improper. Id. §1.8.
43 Id. §5.5. Specifically, administrative sanctions available with respect to “officers and employees of the United States
(continued...)
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Executive Order 12333, United States Intelligence Activities,44 spells out the responsibilities of
members of the Intelligence Community45 for the protection of intelligence information,
including intelligence sources and methods. Under section 1.7 of E.O. 12333, heads of
departments and agencies with organizations in the Intelligence Community (or the heads of such
organizations, if appropriate) must report possible violations of federal criminal laws to the
Attorney General “in a manner consistent with the protection of intelligence sources and
methods.”
Information Security Oversight Office
ISOO Directive No. 1 (32 CFR Part 2001) provides further direction for agencies with
responsibilities for safeguarding classified information. Sec. 2001.41 states:
Authorized persons who have access to classified information are responsible for: (a)
Protecting it from persons without authorized access to that information, to include securing
it in approved equipment or facilities whenever it is not under the direct control of an
authorized person; (b) Meeting safeguarding requirements prescribed by the agency head;
and (c) Ensuring that classified information is not communicated over unsecured voice or
data circuits, in public conveyances or places, or in any other manner that permits
interception by unauthorized persons.
Sec. 2001.45 of ISOO Directive No. 1 requires agency heads to establish a system of appropriate
control measures to limit access to classified information to authorized persons. Sec. 2001.46
requires that classified information is transmitted and received in an authorized manner that
facilitates detection of tampering and precludes inadvertent access. Persons who transmit
classified information are responsible for ensuring that the intended recipients are authorized to
receive classified information and have the capacity to store classified information appropriately.
Documents classified “Top Secret” that are physically transmitted outside secure facilities must
be properly marked and wrapped in two layers to conceal the contents, and must remain under the
constant and continuous protection of an authorized courier. In addition to the methods prescribed
for the outside transmittal of Top Secret documents, documents classified at Secret or
Confidential levels may be mailed in accordance with the prescribed procedures. Agency heads
(...continued)
Government, and its contractors, licensees, certificate holders, and grantees” accused of violating government security
regulations, “knowingly, willfully, or negligently,” include “reprimand, suspension without pay, removal, termination
of classification authority, loss or denial of access to classified information, or other sanctions in accordance with
applicable law and agency regulation.” See infra section “Civil Penalties and Other Measures.”
44 46 Fed. Reg. 59,941 (1981), as amended by Exec .Order No. 13284, 68 Fed. Reg. 4,077 (2003), Exec. Order No.
13355, 69 Fed. Reg. 53,593 (2004) and Exec. Order No. 13470, 73 Fed. Reg. 45,328 (2008). A version of the Order as
amended is available at http://www.fas.org/irp/offdocs/eo/eo-12333-2008.pdf.
45 The Intelligence Community is defined by 50 U.S.C. ' 401a(4) and E.O. 12333 to include the Office of the Director
of National Intelligence (ODNI), the Central Intelligence Agency (CIA), the Bureau of Intelligence and Research of the
Department of State (INR), the National Security Service of the Federal Bureau of Investigation (FBI), the Office of
Intelligence and Analysis of the Department of Homeland Security (DHS), the Office of Intelligence or the Coast
Guard (CG), other DHS elements concerned with the analysis of intelligence information, the Office of Intelligence and
Analysis of the Treasury Department, the Energy Department, the Drug Enforcement Agency (DEA), the Defense
Intelligence Agency (DIA), the National Security Agency (NSA), the National Reconnaissance Office (NRO), the
National Geospatial Intelligence Agency (NGA), Army Intelligence, Air Force Intelligence, Navy Intelligence, and
Marine Corps Intelligence, as well as “[s]uch other elements of any other department or agency as may be designated
by the President, or designated jointly by the Director of National Intelligence and the head of the department or agency
concerned, as an element of the intelligence community.”
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are required to establish procedures for receiving classified information in a manner that
precludes unauthorized access, provides for detection of tampering and confirmation of contents,
and ensures the timely acknowledgment of the receipt (in the case of Top Secret and Secret
information).
Sec. 2001.48 prescribes measures to be taken in the event of loss, possible compromise or
unauthorized disclosure. It states: “Any person who has knowledge that classified information has
been or may have been lost, possibly compromised or disclosed to an unauthorized person(s)
shall immediately report the circumstances to an official designated for this purpose.”
Agency heads are required to establish appropriate procedures to conduct an inquiry or
investigation into the loss, possible compromise or unauthorized disclosure of classified
information, in order to implement “appropriate corrective actions” and to “ascertain the degree
of damage to national security.” The department or agency in which the compromise occurred
must also advise any other government agency or foreign government agency whose interests are
involved of the circumstances and findings that affect their information or interests. Agency heads
are to establish procedures to ensure coordination with legal counsel in any case where a formal
disciplinary action beyond a reprimand is contemplated against a person believed responsible for
the unauthorized disclosure of classified information. Whenever a criminal violation appears to
have occurred and a criminal prosecution is contemplated, agency heads are to ensure
coordination with the Department of Justice and the legal counsel of the agency where the
individual believed to be responsible is assigned or employed. Violators are generally subject to
imprisonment or fine, and in some cases, loss of retirement or other benefits.
Intelligence Community
The most recent intelligence community directives related to the safeguarding of classified
information appear to be Intelligence Community Directive (ICD) 700, Protection of National
Intelligence, effective June 7, 2012,46 and ICD 701, Security Policy Directive for Unauthorized
Disclosures of Classified Information, effective March 14, 2007.47 ICD 700 mandates an
integration of counterintelligence and security functions for the purpose of protecting national
intelligence and sensitive information and, among other things, to strengthen “deterrence,
detection, and mitigation of insider threats, defined as personnel who use their authorized access
to do harm to the security of the US through espionage, terrorism, unauthorized disclosure of
information, or through the loss or degradation of resources or capabilities.”48 Under ICD 701,
Senior Officials of the Intelligence Community (SOICs)49 are to promptly notify the DNI (and, if
appropriate, law enforcement authorities) of any actual or suspected unauthorized disclosure of
classified information, including any media leak, that is likely to cause damage to national
security interests, unless the disclosure is the subject of a counterespionage or counterintelligence
investigation. Disclosures to be reported include:
Unauthorized disclosure to an international organization, foreign power, agent of a foreign
power, or terrorist organization;
46 Available at http://www.dni.gov/files/documents/ICD/ICD_700.pdf.
47 Available at http://www.fas.org/irp/dni/icd/icd-701.pdf.
48 ICD 700 §D.3.c.
49 Senior Officials of the Intelligence Community (SOICs) means “heads of departments and agencies with
organizations in the Intelligence Community or the heads of such organizations.” Exec. Order No. 12333 at §1.7.
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National intelligence activities or information that may be at risk of appearing in the public
media, either foreign or domestic, without official authorization;
Loss or compromise of classified information that poses a risk to human life;
Loss or compromise of classified information that is indicative of a systemic compromise;
Loss or compromise of classified information storage media or equipment;
Discovery of clandestine surveillance and listening devices;
Loss or compromise of classified information revealing U.S. or a foreign intelligence
partner’s intelligence operations or locations, or impairing foreign relations;
Such other disclosures of classified information that could adversely affect activities related
to US national security; and
Loss or compromise of classified information revealing intelligence sources or methods, US
intelligence requirements, capabilities and relationships with the US Government.
Upon determining that a compromise meeting the above reporting criteria has or may have
occurred, the SOIC is required promptly to report it to the DNI, through the Special Security
Center (SSC), and to any other element with responsibility for the material at issue. The SOIC is
then required to provide updated reports as appropriate (or as directed). This process occurs in
tandem with any required reporting to law enforcement authorities.
The required formal notification to the DNI is to include a complete statement of the facts, the
scope of the unauthorized disclosure, sources and methods that may be at risk, the potential effect
of the disclosure on national security, and corrective or mitigating actions. SOICs are further
required to identify all factors that contributed to the compromise of classified information and
take corrective action or make recommendations to the DNI.
Department of Defense
Department of Defense Directive 5210.50, “Unauthorized Disclosure of Classified Information to
the Public” (July 22, 2005)50 governs procedures for handling unauthorized disclosures of
classified information to the public. In the event of a known or suspected disclosure of classified
information, the heads of DoD components must report the incident to the Deputy Secretary of
Defense of Intelligence and conduct a preliminary investigation to confirm that classified
information was disclosed, identify the particulars of the incident and who was involved,
ascertain whether the information was properly classified or was authorized to be released, and
identify any leads that might identify the person or persons responsible. The preliminary
investigation should also ascertain whether further inquiry might increase the damage caused by
the compromise.
Enclosure 2 to Directive 5210.50 lists factors for determining whether to initiate an additional
investigation by military, criminal, or counterintelligence investigative organizations, or the
Department of Justice:
50 Available at http://www.dtic.mil/whs/directives/corres/pdf/521050p.pdf.
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The accuracy of the information disclosed.
The damage to national security caused by the disclosure and whether there were
compromises regarding sensitive aspects of current classified projects, intelligence sources,
or intelligence methods.
The extent to which the disclosed information was circulated and the number of persons
known to have access to it.
The degree to which an investigation shall increase the damage caused by the disclosure.
The existence of any investigative leads.
The reasonable expectation of repeated disclosures.
The extent to which the classified information was circulated outside the Department of
Defense.
If classified DoD information appears in a newspaper or other media, the head of the appropriate
DoD component is responsible for the preparation of a “DOJ Media Leak Questionnaire” to
submit to the Deputy Secretary of Defense for Intelligence, who prepares a letter for the Chief,
Internal Security Section of the Criminal Division at the Department of Justice. The following
eleven questions51 are to be promptly and fully addressed:
• Date and identity of the article containing classified information.
• Specific statements that are classified, and whether the information is properly
classified.
• Whether disclosed information is accurate.
• Whether the information came from a specific document, and if so, the
originating office and person responsible for its security.
• Extent of official circulation of the information.
• Whether information has been the subject of prior official release.
• Whether pre-publication clearance was sought.
• Whether sufficient information or background data has been published officially
or in the press to make educated speculation on the matter possible.
• Whether information is to be made available for use in a criminal prosecution.
• Whether information has been considered for declassification.
• The effect the disclosure of the classified data might have on the national
defense.
51 The questions are listed in enclosure 4 of DoDD 5210.50, and apparently are part of a Memorandum of
Understanding concluded between the Department of Justice and elements of the Intelligence Community. See U.S.
Congress, Senate Select Committee on Intelligence, Concerning Unauthorized Disclosure of Classified Information,
106th Cong., 2nd sess., June 14, 2000 (Statement of Attorney General Janet Reno).
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Penalties for Unauthorized Disclosure
In addition to administrative penalties agencies may employ to enforce information security, there
are several statutory provisions that address the protection of classified information as such. No
blanket prohibition exists to make it unlawful simply to disclose without authority any
information that is classified by the government for national security reasons.52
Criminal Penalties
Generally, federal law prescribes a prison sentence of no more than a year and/or a $1,000 fine
for officers and employees of the federal government who knowingly remove classified material
without the authority to do so and with the intention of keeping that material at an unauthorized
location.53 Stiffer penalties—fines of up to $10,000 and imprisonment for up to 10 years—attach
when a federal employee transmits classified information to anyone that the employee has reason
to believe is an agent of a foreign government.54 A fine and a 10-year prison term also await
anyone, government employee or not, who publishes, makes available to an unauthorized person,
or otherwise uses to the United States’ detriment classified information regarding the codes,
cryptography, and communications intelligence utilized by the United States or a foreign
government.55 Finally, the disclosure of classified information that discloses any information
identifying a covert agent, when done intentionally by a person with authorized access to such
identifying information, is punishable by imprisonment for up to 15 years.56 A similar disclosure
by one who learns the identity of a covert agent as a result of having authorized access to
classified information is punishable by not more than ten years’ imprisonment. Under the same
provision, a person who undertakes a “pattern of activities intended to identify and expose covert
agents” with reason to believe such activities would impair U.S. foreign intelligence activities,
and who then discloses the identities uncovered as a result is subject to three years’ imprisonment,
whether or not violator has access to classified information.57
Civil Penalties and Other Measures
In addition to the criminal penalties outlined above, the executive branch employs numerous
means of deterring unauthorized disclosures by government personnel using administrative
measures based on terms of employment contracts. The agency may impose disciplinary action or
revoke a person’s security clearance. The revocation of a security clearance is usually not
reviewable by the Merit System Protection Board58 and may mean the loss of government
52 For a broader overview of statutory provisions applicable to specific types of sensitive information, see CRS Report
R41404, Criminal Prohibitions on the Publication of Classified Defense Information, by Jennifer K. Elsea.
53 18 U.S.C. §1924.
54 50 U.S.C. §783.
55 18 U.S.C. §798.
56 50 U.S.C. §421.
57 “Classified information” for the purpose of this provision is defined as “information or material designated and
clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order
issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized
disclosure for reasons of national security.” 50 U.S.C. §426.
58 See Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988). Federal courts may review constitutional challenges
based on the revocation of security clearance. Webster v. Doe, 486 U.S. 592 (1988).
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employment. Government employees may be subject to monetary penalties for disclosing
classified information.59 Violators of the Espionage Act and the Atomic Energy Act provisions
may be subject to loss of their retirement pay.60
Agencies also rely on contractual agreements with employees, who typically must sign non-
disclosure agreements prior to obtaining access to classified information,61 sometimes agreeing to
submit all materials that the employee desires to publish to a review by the agency. The Supreme
Court enforced such a contract against a former employee of the Central Intelligence Agency
(CIA), upholding the government’s imposition of a constructive trust on the profits of a book the
employee sought to publish without first submitting it to CIA for review.62
In 1986, the Espionage Act was amended to provide for the forfeiture of any property derived
from or used in the commission of an offense.63 Violators of the Atomic Energy Act may be
subjected to a civil penalty of up to $100,000 for each violation of Energy Department regulations
regarding dissemination of unclassified information about nuclear facilities.64
Under some circumstances, the government can also use injunctions to prevent disclosures of
information. The courts have generally upheld injunctions against former employees’ publishing
information they learned through access to classified information.65 The Supreme Court also
upheld the State Department’s revocation of passports for overseas travel by persons planning to
expose U.S. covert intelligence agents, despite the fact that the purpose was to disrupt U.S.
intelligence activities rather than to assist a foreign government.66
Declassification vs. Leaks and
“Instant Declassification”
As noted above, E.O. 13526 sets the official procedures for the declassification of information.
Once information is declassified, it may be released to persons without a security clearance.67
Leaks, by contrast, might be defined as the release of classified information to persons without a
security clearance, typically journalists. Recent high-profile leaks of information regarding
59 See 42 U.S.C. §2282(b) (providing for fine of up to $100,000 for violation of Department of Energy security
regulations).
60 5 U.C.S. §8312 (2001)(listing violations of 18 U.S.C. §§793 & 798, 42 U.S.C. §2272-76, and 50 U.S.C. §421,
among those for which forfeiture of retirement pay or annuities may be imposed).
61 See United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972) (enforcing contractual
non-disclosure agreement by former employee regarding “secret information touching upon the national defense and
the conduct of foreign affairs” obtained through employment with CIA).
62 See Snepp v. United States, 444 U.S. 507 (1980); see also Alan E. Garfield, Promises of Silence: Contract Law and
Freedom of Speech, 83 CORNELL L. REV. 261, 274 (1998)(noting the remedy in Snepp was enforced despite the
agency’s stipulation that the book did not contain any classified information).
63 See 18 U.S.C. §§793(h), 794(d), 798(d).
64 42 U.S.C. §2168(b).
65 See United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (granting an injunction to prevent a former CIA agent
from publishing a book disclosing government secrets).
66 See Haig v. Agee, 453 U.S. 280 (1981).
67 Declassification is an information management step that is distinct and precedes release. Thus, it is not unusual for
information to be declassified and then a lengthy period ensues before it is publicly released.
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sensitive covert operations in news stories that seemed to some to portray the Administration in a
favorable light68 raised questions regarding the practice of “instant declassification,” or whether
disclosure of classified information to journalists may ever be said to be an “authorized
disclosure” by a senior official.
The processes for declassification set forth in E.O. 13526 seem to presuppose that agencies and
classifying officials will not have any need or desire to disclose classified information in their
possession other than to comply with the regulations. Yet it has long been noted that there seems
to be an informal process for “instant declassification” of information whose release to the public
serves an immediate need. As Representative William Moorhead, at the time chairman of the
Foreign Operations and Government Information Subcommittee of the House Government
Operations Committee, stated in 1974:
Critics of the present system of handling classified information within the Executive Branch
point to an obvious double standard. On one hand, the full power of the Government’s legal
system is exercised against certain newspapers for publishing portions of the Pentagon
Papers and against someone like Daniel Ellsberg for his alleged role in their being made
public. This is contrasted with other actions by top Executive officials who utilize the
technique of “instant declassification” of information they want leaked. Sometimes it is an
“off-the-record” press briefing or “backgrounders” that becomes “on-the-record” at the
conclusion of the briefing or at some future politically strategic time. Such Executive Branch
leaks may be planted with friendly news columnists. Or, the President himself may exercise
his prerogative as Commander in Chief to declassify specific information in an address to the
Nation or in a message to the Congress seeking additional funds for a weapons systems.69
Nothing in the Executive Order addresses an informal procedure for releasing classified
information. E.O. 13526 section 1.1. provides that “[c]lassified information shall not be
declassified automatically as a result of any unauthorized disclosure of identical or similar
information,” but does not address what happens in the event of a disclosure that was in fact
authorized. By definition, classified information is designated as such based on whether its
unauthorized disclosure can reasonably be expected to cause a certain level of damage to the
national security.70 This may be read to suggest that disclosures may be authorized under such
circumstances when no damage to national security is reasonably expected. Nothing in the order
provides explicit authority to release classified information that exists apart from the authority to
declassify, but it is possible that such discretionary authority is recognized to release information
outside the community of authorized holders without formally declassifying it.
Part 4 of the Executive Order describes safeguarding of classified information from unauthorized
disclosure71 and preventing access to such information by “unauthorized persons.” Most of the
68 See National Security Leaks and the Law, Hearing before the Subcomm. on Crime, Terrorism and Homeland
Security of the H. Comm. on the Judiciary 1-2, 112th Cong. (2012) (statement of Rep. Sensenbrenner).
69 William S. Moorhead, Operation and Reform of the Classification System in the United States 90, in SECRECY AND
FOREIGN POLICY (Thomas M. Franck and Edward Weisband, eds. 1974 ). For an account of notable government leaks
at the time, see id. at at 89; Information Security: Classification of Government Documents, 85 HARV. L. REV. 1189,
1206-07 (1972). For a more recent chronology of government leaks, see Mary-Rose Papandrea, Lapdogs, Watchdogs,
and Scapegoats: The Press and National Security Information, 83 IND. L.J. 233, 251-53 (2008) (quoting various high-
level officials who admitted to leaking information in order to generate public support for a program or to promote
some other political or bureaucratic agenda).
70 E.O. 13,526 §1.2.
71 “Unauthorized disclosure” means “a communication or physical transfer of classified information to an unauthorized
recipient.” Id. §6.1(rr). “Unauthorized” recipient is not defined.
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provisions appear to envision classified documents or communications and storage devices used
for classified information rather than the spoken word. Section 4.1(g) requires agency heads and
the Director of National Intelligence to “establish controls to ensure that classified information is
used, processed, stored, reproduced, transmitted, and destroyed under conditions that provide
adequate protection and prevent access by unauthorized persons.” If “transmitted” is read to
include oral dissemination and “unauthorized persons” is read to mean persons who do not meet
the criteria set forth in section 4.1(a),72 then it would seem that agency heads who approve leaks
could be in breach of their responsibilities under the Order.
Moreover, there is a provision for “emergency disclosure” of classified information “when
necessary to respond to an imminent threat to life or in defense of the homeland” to “an
individual or individuals who are otherwise not eligible for access.” Section 4.2(b) provides that
such disclosures must be in accordance with implementing regulations or procedures the
classifying agency implements; must be undertaken in such a way as to minimize the information
disclosed and the number of individuals who receive it; and must be reported promptly to the
originator. Information disclosed under this provision is not deemed to be declassified. The
existence of this provision could be read to cut against an interpretation that permits selected
release of classified information to reporters for broader dissemination, but it could also be read
not to preclude a different procedure by which an agency head who is the original classifying
authority for the information at issue might simply authorize remarks to the press that reference
classified information in such a way as to minimize harm to national security
As a practical matter, however, there is little to stop agency heads and other high-ranking officials
from releasing classified information to persons without a security clearance when it is seen as
suiting government needs. The Attorney General has prosecutorial discretion to choose which
leaks to prosecute. If in fact a case can be made that a senior official has made or authorized the
disclosure of classified information, successful prosecution under current laws may be impossible
because the scienter requirement (i.e., guilty state of mind) is not likely to be met. The Espionage
Act of 1917, for example, requires proof that the discloser has the intent or reason to believe the
information will be used against the United States or to the benefit of a foreign nation.73 In cases
under the Espionage Act, courts tend to show deference to the government with respect to the
sensitivity of whatever classified information was released. Oftentimes in such cases, knowledge
that the information is classified is enough to persuade a court that damage to national security
can be expected. However, in the event the disclosure was made or authorized by a person who
has the authority to make such determinations, it would seem likely that court deference would
result in acquittal absent some overwhelming proof of ill intent. A belief on the part of a lower
level official that a particular disclosure was authorized could serve as an effective defense to any
prosecution, and could entitle the defendant to depose high level government officials in
preparation for his or her defense.
Executive Branch policy appears to treat an official disclosure as a declassifying event, while
non-attributed disclosures have no effect on the classification status of the information. For
example, the Department of Defense instructs agency officials, in the event that classified
72 A person who does meet the criteria in section 4.1.(a) is defined as an “authorized holder” under the definitions
section of the Order, section 6.1(c).
73 18 U.S.C. §793. For more information about criminal laws proscribing leaks, see CRS Report R41404, Criminal
Prohibitions on the Publication of Classified Defense Information, by Jennifer K. Elsea. The level of knowledge
required to prove an offense depends on the type of information alleged to have been disclosed, and it is not necessarily
a crime to disclose information merely because it is classified. See id.
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information appears in the media, to neither confirm nor deny the accuracy of the information.74
The Under Secretary of Defense for Intelligence is then advised to “consult with the Assistant
Secretary of Defense for Public Affairs and other officials having a primary interest in the
information to determine if the information was officially released under proper authority.”75 The
regulation does not clarify what happens in the event the disclosure turns out to have been
properly authorized. It appears no further action need be taken, whether to inform employees that
the information no longer need be protected or to make annotations in classified records to reflect
the newly declassified status of the information. In any event, any documents that contain that
information are likely to contain other classified information as well, in which case each such
document would retain the highest level of classification applicable to information in the
document. Thus, it seems unlikely that the authorized disclosure of classified information to the
media will often result in the public release of any records.
Recent Developments
The following sections address efforts undertaken by the Executive Branch and Congress to
address disclosures of classified information by federal employees.
Executive Branch Initiatives
In October 2011 the President issued Executive Order 13587, “Structural Reforms to Improve the
Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified
Information,” to improve computer network security and safeguarding of classified information.76
Among other measures, it establishes an interagency Insider Threat Task Force with a mandate to:
develop a Government-wide program (insider threat program) for deterring, detecting, and
mitigating insider threats, including the safeguarding of classified information from
exploitation, compromise, or other unauthorized disclosure, taking into account risk levels,
as well as the distinct needs, missions, and systems of individual agencies. This program
shall include development of policies, objectives, and priorities for establishing and
integrating security, counterintelligence, user audits and monitoring, and other safeguarding
capabilities and practices within agencies.77
The President issued the resulting new policy and minimum standards for agencies in
implementing their own insider threat programs in November 2012.78
The Director of National Intelligence issued a revised directive in June 2012 to govern the
protection of national intelligence by the intelligence community.79 It emphasizes the integration
74 Department of Defense, Department of Defense Manual, 5200.01-V3, February 24, 2012 encl. 6 at 93.
75 Id. at 94.
76 Exec. Order No. 13587, 3 C.F.R. 276 (2011), available at http://www.whitehouse.gov/the-press-office/2011/10/07/
executive-order-structural-reforms-improve-security-classified-networks-.
77 Id. §6.
78 Press Release, White House Office of the Press Secretary, Presidential Memorandum—National Insider Threat
Policy and Minimum Standards for Executive Branch Insider Threat Programs (Nov. 21, 2012), available at
http://www.whitehouse.gov/the-press-office/2012/11/21/presidential-memorandum-national-insider-threat-policy-and-
minimum-stand. The policy and standards do not appear to have been made public.
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of security and counterintelligence functions for, among other purposes, strengthening deterrence,
detection and mitigation of “insider threats,” which it defined as “personnel who use their
authorized access to do harm to the security of the US through espionage, terrorism, unauthorized
disclosure of information, or through the loss or degradation of resources or capabilities.” It also
establishes an inspection process to ensure that departments and agencies that handle national
intelligence maintain effective operational security practices. Also in June 2012, the Office of the
Director of National Intelligence announced two new measures aimed to protect classified
information from unauthorized disclosure, The Director mandated the inclusion of a new question
related to unauthorized disclosures to counterintelligence polygraph examinations and requested
the Intelligence Community Inspector General to lead independent investigations of selected
unauthorized disclosure cases where the Justice Department has declined to prosecute.80
The Department of Defense issued a revised version of the DoD Information Security Program
manual, which among other things mandates a department-wide incident reporting system to
track unauthorized disclosures. It also tasks the Undersecretary of Defense for Intelligence, in
consultation with the Assistant Secretary for Public Affairs, with monitoring all “major, national
level media reporting” for unauthorized disclosures of DoD classified information81 as a part of a
new “top down reporting system to detect unauthorized disclosures. The Department also put into
effect an automated security incident reporting system and an improved system for monitoring
DoD networks, and initiated a DoD Insider Threat Program as well as an Unauthorized
Disclosure Working Group.82
Congressional Activity
The 112th Congress held at least two hearings on the topic of unauthorized disclosures of
classified information.83 Congress also passed a measure as part of the National Defense
Authorization Act for FY2012 to require the Defense Department to establish a “program for
information sharing protection and insider threat mitigation for the information systems of the
Department of Defense to detect unauthorized access to, use of, or transmission of classified or
controlled unclassified information.”84 Its purpose appears to be avoidance of a reiteration of the
Wikileaks disclosures, and the program is required to make use of both technology based
solutions as well as a “governance structure and process” to integrate these technologies into
existing security measures.
(...continued)
79 Intelligence Community Directive (ICD) 700, Protection of National Intelligence, effective June 7, 2012, available at
http://www.dni.gov/files/documents/ICD/ICD_700.pdf.
80 Press Release, Office of the Director of National Intelligence, Director Clapper Announces Steps to Deter and Detect
Unauthorized Disclosures (June 25, 2012), available at http://www.dni.gov/index.php/newsroom/press-releases/96-
press-releases-2012/586-director-clapper-announces-steps-to-deter-and-detect-unauthorized-disclosures.
81 Press Release, Department of Defense Office of the Assistant Secretary (Public Affairs), Statement from George
Little on Defense Initiatives to Limit Unauthorized Disclosures of Classified Information (July 19, 2012), available at
http://www.defense.gov/Releases/Release.aspx?ReleaseID=15451. The four-volume manual for the DoD Information
Security Program is available at http://www.dtic.mil/whs/directives/corres/pub1.html.
82 Id.
83 National Security Leaks and the Law, Hearing before the Subcomm. on Crime, Terrorism and Homeland Security of
the H. Comm. on the Judiciary, 112th Cong. (2012); Disclosures of National Security Information and Impact on
Military Operations, Hearing before the H. Comm. on Armed Services, 112th Cong (2012);
84 P.L. 112-81, §922, codified at 10 U.S.C. §2224 note.
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The Intelligence Authorization Act for FY2013, S. 3454, as reported by the Senate Intelligence
Committee, contains a number of measures to address the disclosure of classified information by
federal employees, whether authorized or not, especially if the disclosure is to the media. Some of
the measures have effectively already been or are in the process of being addressed by the
executive branch, as discussed in the previous section. The bill does not propose any changes to
criminal law, but does address administrative penalties available to deter and punish government
personnel who disclose classified information without authority.
Reporting of authorized disclosures. Section 501 of the bill would require a governmental
official who approves a disclosure of classified information to the media, or to another person for
publication, to first report the decision and other matters related to the disclosure to the
congressional intelligence committees. Section 502 would require the heads of agencies and
departments of the intelligence community to maintain a list of all authorized disclosures to
media personnel, contract analysts for the media, and any other person to whom information is
released with the intention that the information be made public.
Requirement to investigate unauthorized disclosures. Section 503 would require the elements
of the intelligence community to establish procedures for administrative investigations of
unauthorized disclosures and to report such procedures to the intelligence committees. Listed
elements required as part of the procedure include designation of an official responsible for
identifying unauthorized disclosures of classified information; submission of crimes reports to the
Attorney General; independent administrative investigations if no criminal investigation is
pursued; Attorney General guidelines for the FBI to investigate unauthorized disclosures;
disciplinary measures, to include termination of employment; and procedures to keep the
congressional intelligence committees informed of the status of all administrative investigations
and crimes reports.
Assessment of detection procedures. Section 504 would require the DNI to assess the practical
feasibility of including questions regarding disclosure of classified information and contact with
the media in polygraph examinations; an assessment of the benefits of extending the requirements
of the 2012 NDAA regarding insider threat procedures85 to computers certified for sensitive
compartmented information; and a description of measures to address improper classification. It
would require the inspector general of the intelligence community to provide the intelligence
committees an assessment of the community’s processes for preventing, detecting, and
investigating unauthorized disclosures of classified information, and to describe best practices
identified by the assessment.
Measures to control media access to government employees. Section 505 contains a
prohibition on federal officers, employees and contractors who have a security clearance from
entering into an agreement with the media to provide analysis or commentary on matters related
to classified intelligence activities or intelligence related to the national security. The ban would
also apply to former personnel under certain circumstances. Section 506 would limit the
individuals authorized to provide background or off-the-record information to the media
regarding intelligence activities to the Director and Deputy Directors or their equivalent and
designated public affairs officers. Section 507 would require the Director of National Intelligence
to prescribe regulations regarding the interaction of cleared personnel with the media. Such
persons would be required to report all contacts with the media to the appropriate security office.
85 Id.
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The regulations would also be required to ensure that departing employees are aware of their
security obligations and that personnel comply with prepublication requirements. Finally, the
regulations would cover disciplinary actions to be taken against personnel who violate
agreements required by section 507.
Report on criminal process. Section 508 would require the Attorney General to submit a report
to congressional intelligence committees describing the effectiveness of and potential
improvements to the process for investigating and prosecuting unauthorized disclosures of
classified information; potential modifications to the policy on subpoenaing reporters; and
suggested modifications to the Classified Information Procedures Act.86
Insider threat initiatives. Section 509 contains requirements for elements of the intelligence
community to designate insider threat program managers, who would be given a year to develop a
comprehensive insider threat program management plan. The programs would be required to
have established a full operating capability for detecting insider threats within two years of
enactment. Section 510 would extend the deadlines for implementing an automated insider threat
detection program as required by section 402 of the Intelligence Authorization Act for FY2011
(P.L. 112-18).
Employee non-disclosure agreements. Section 511 would require the head of each element of
the intelligence community to publish regulations to require employees to sign a written
agreement never to disclose classified information without authorization and to comply with all
prepublication review requirements. Failure to comply with such requirements would be subject
to disciplinary actions to be specified, which would include the forfeit of pensions.
Covert Action disclosures. Section 512 would prohibit federal officers, employees, and
contractors from possessing a security clearance after making any unauthorized disclosure
regarding the existence of, or classified details relating to, a covert action as defined in 50 U.S.C.
Section 413(b).
Author Contact Information
Jennifer K. Elsea
Legislative Attorney
jelsea@crs.loc.gov, 7-5466
86 For information about the Classified Information Procedures Act, see CRS Report R41742, Protecting Classified
Information and the Rights of Criminal Defendants: The Classified Information Procedures Act, by Edward C. Liu and
Todd Garvey.
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